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Jail term starts for flood mitigation contractor
Posted By -NO AUTHOR- On 08/07/2008 @ 12:40 am In Front Page | Comments Disabled
No relief arrived for Driggs, Idaho, developer Lynn Moses, who reported today to a federal prison in Oregon to begin an 18-month sentence for doing flood mitigation work in his hometown, according to his lawyer.
WND reported earlier this week that his attorney had filed a request with the trial court to overturn its own conviction and sentence, since the law appears to be on Moses’ side, as does the U.S. Supreme Court.
A park in Driggs, Idaho
The issue is that local officials in Driggs ordered Moses to do drainage improvements as part of a subdivision project on which he worked, and then, more than two decades later, federal officials said their regulations banned such work.
Moses’ lawyer, Blake Atkin of Salt Lake City, confirmed the circumstances of the case, explaining that although the federal government repeatedly has denied having jurisdiction over the work involved, an opinion shared by the U.S. Supreme Court, Moses nevertheless was convicted on charges relating to his work on the streambed of Teton Creek, an intermittent runoff channel that has water in it for about eight weeks of the year.
“Worse, Mr. Moses has been convicted of ‘pollut(ing) a spawning area for Yellowstone cutthroat trout,’ despite the fact that there have been no fish in this streambed for more than 150 years,” Fischer wrote. “[A resident] who has lived near the flood channel for 18 years says he has never seen fish in this streambed. And it’s not even possible for the streambed to serve as a spawning ground since it only has water two months out of every year in the first place.”
Atkin told WND his client reported to prison to begin his 18-month term today.
He said the issue began nearly 30 years ago when Moses started developing a parcel of ground adjacent to the creek.
“The county said, ‘You have got to take care of this flooding or we will not let you build. By the way, we want a new road and while you’re building this subdivision, build us a drainage channel to make sure the water goes (where we want it),’” Atkins said.
Moses hired an engineer and contacted the federal government to obtain permission the project, and the Corps of Engineers told him there was no federal jurisdiction, since it was an intermittent stream without any regular water flow.
The same conversation took place several times over the years, including in the 1990s when a Corps of Engineers staff member tried to convince a federal prosecutor to bring a case against Moses.
“The U.S. attorney told him to take a hike since the Corps had no jurisdictional authority to initiate legal action,” Fischer said. “According to former state legislator Lee Gagner, the Corps ‘discussed his process many times with him, but could not show where they had jurisdiction on the seasonal, intermittent stream,’ Gagner adds, ‘[T]o this day they do not have written rules indicating this to be true,” Fischer said.
Atkins said that very issue has been raised several times in the course of the case against Moses, but no court ruling ever has addressed it.
Then came a new decision to pursue the case and a conviction after jurors were told by Judge Lynn Winmill to disregard Moses’ attempts to submit the project to the Corps of Engineers and statements about U.S. government determinations regarding the channel in the 1980s and 1990s.
On the day Moses was sentenced to prison, the U.S. Supreme Court released its Rapanos case ruling, in which Justice Antonin Scalia confirmed the Clean Water Act gives the federal government jurisdiction only over “relatively permanent, standing or continuously flowing bodies of water,” not intermittent streams.
Explicitly, he said, “The ‘waters of the United States’ does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Corps of Engineers’ rules then were modified to include the provision.
But those facts were not applied to the Moses case, supporters said.
Atkins said his latest effort on behalf of Moses is a motion that essentially asks the trial court voluntarily to reverse the conviction, since there are none of the essential elements of a crime to be prosecuted. It was a year ago when Moses lost an appeal to the 9th U.S. Circuit Court of Appeals. The U.S. Supreme Court recently decided against hearing the case.
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